Neoliberalism and Human Rights (Do Not Delete) 11/27/2018 10:58 Am

139 BOOK PROOF - OZSU - NEOLIBERALISM AND HUMAN RIGHTS (DO NOT DELETE) 11/27/2018 10:58 AM NEOLIBERALISM AND HUMAN RIGHTS: THE BRANDT COMMISSION AND THE STRUGGLE FOR A NEW WORLD UMUT ÖZSU* I INTRODUCTION It is now widely understood that various forms of neoliberalism began to gain a significant foothold in the legal and economic systems of numerous states after the effective collapse of the Bretton Woods monetary order in the early 1970s. A product of the interwar period, neoliberalism emerged during the 1970s and 1980s from the universities, think tanks, and peripheral policy fora to which it had been consigned after suffering defeat in the immediate post-Second World War era. Its rise during this period is generally attributed to decades of mobilization by the Mont Pèlerin Society, a transatlantic forum organized along broadly anti- Keynesian lines that brought together Friedrich Hayek, Milton Friedman, and the German ordoliberals. Previously dismissed by many on the grounds that it failed to appreciate the lessons of the Great Depression and peddled an unsus- tainably austere form of neo-Smithian economics, neoliberalism came to estab- lish itself as the dominant ideology of governance, the norm against which every exception was to be evaluated. Whatever opposition there may be in some quar- ters to using the term “neoliberalism,” the general contours of this historical tran- sition have been established and are now the subject of a robust, rapidly growing, and increasingly multifaceted literature. Less a tightly coordinated school of thought than a loose network of heterodox economists, political thinkers, and enterprising publicists who shared a common opposition to socialism and social democracy, neoliberals are now recognized as having waged a decades-long struggle to transform both state and society in accordance with a particular understanding of the market.1 Copyright © 2018 by Umut Özsu. This article is also available online at http://lcp.law.duke.edu/. * Assistant Professor, Carleton University Department of Law and Legal Studies. I thank Julia Dehm, Zachary Manfredi, Liam McHugh-Russell, Samuel Moyn, Paul O’Connell, Akbar Rasulov, Quinn Slo- bodian, Jessica Whyte, Christiane Wilke, and the editors of this special issue, particularly Kevin Copp and James Loeffler, for comments. I also thank Stephen M. Jaber, as well as Heather Cron, Roxanne Degens, Duchoang Pham, Dalton Powell, and Will Sowers Jr., for their editorial assistance. 1. The literature on neoliberalism is enormous, rapidly growing, and fraught with internal debate. See generally WERNER BONEFELD, THE STRONG STATE AND THE FREE ECONOMY (2017); WENDY BROWN, UNDOING THE DEMOS: NEOLIBERALISM’S STEALTH REVOLUTION (2015); YVES DEZALAY & BRYANT G. GARTH, THE INTERNATIONALIZATION OF PALACE WARS: LAWYERS, ECONOMISTS, AND THE CONTEST TO TRANSFORM LATIN AMERICAN STATES (2002); MICHEL FOUCAULT, THE BIRTH OF BIOPOLITICS: LECTURES AT THE COLLÈGE DE FRANCE 1978–79 (Michel Senellart ed., Graham Burchell 139 BOOK PROOF - OZSU - NEOLIBERALISM AND HUMAN RIGHTS (DO NOT DELETE) 11/27/2018 10:58 AM 140 LAW AND CONTEMPORARY PROBLEMS [Vol. 81:139 What are not widely understood, though, are the relations between this turn to neoliberalism and the contemporaneous success of international human rights movements. A new generation of scholars now view the 1970s as critical for the operational breakthrough of individualistic human rights, broached not so much as a set of rhetorical tropes that draw upon the discursive arsenal of the natural rights tradition (this much had been available long before the 1970s) but as an organized, large-scale movement with strong and effective representation at the highest levels of state power and international organization.2 However, despite the era’s transformative significance, work on the political economy of this breakthrough, especially its relation to the consolidation and concomitant normaliza- tion of neoliberalism, remains patchy and unsystematic. This article attempts to contribute to the development of a more nuanced understanding of the relationship between neoliberalism and human rights. It does so by examining a particularly important endeavor: the “North-South Commis- sion” (hereinafter “Commission”), chaired by former West German Chancellor Willy Brandt during the late 1970s and early 1980s. Established with the aim of providing an additional forum for dialogue between the Group of 7 and Group of 77,3 the Brandt Commission sought to win support for a model of global political economy in which enhanced aid, lending, debt-relief, investment, technology trans., 2008); DAVID HARVEY, A BRIEF HISTORY OF NEOLIBERALISM (2005); PHILIP MIROWSKI, NEVER LET A SERIOUS CRISIS GO TO WASTE: HOW NEOLIBERALISM SURVIVED THE FINANCIAL MELTDOWN (2013); QUINN SLOBODIAN, GLOBALISTS: THE END OF EMPIRE AND THE BIRTH OF NEOLIBERALISM (2018); DANIEL STEDMAN JONES, MASTERS OF THE UNIVERSE: HAYEK, FRIEDMAN, AND THE BIRTH OF NEOLIBERAL POLITICS (2012); THE ROAD FROM MONT PÈLERIN: THE MAKING OF THE NEOLIBERAL THOUGHT COLLECTIVE (Philip Mirowski & Dieter Plehwe eds., 2009) [hereinafter THE ROAD FROM MONT PÈLERIN]. The specifically legal dimensions receive attention in NEOLIBERAL LEGALITY: UNDERSTANDING THE ROLE OF LAW IN THE NEOLIBERAL PROJECT 3 (Honor Brabazon ed., 2017) (arguing that “neoliberalism must be seen as a convergence of intertwined and mutually influ- ential political, economic, and juridical trajectories. Neoliberalism is as much a juridical phenomenon as a political and economic one . .”); THE POLITICS OF LEGALITY IN A NEOLIBERAL AGE (Ben Golder & Daniel McLoughlin eds., 2017); Symposium, Law and Neoliberalism, 77 LAW & CONTEMP. PROBS. (2014). Important for understanding neoliberalism’s success but typically neglected by students of this literature is LUC BOLTANSKI & EVE CHIAPELLO, THE NEW SPIRIT OF CAPITALISM (Gregory Elliott trans., 2006) (1999). 2. For the best-known illustration of this thesis, see SAMUEL MOYN, THE LAST UTOPIA: HUMAN RIGHTS IN HISTORY (2010). See also THE BREAKTHROUGH: HUMAN RIGHTS IN THE 1970S (Jan Eckel & Samuel Moyn eds., 2013); SAMUEL MOYN, NOT ENOUGH: HUMAN RIGHTS IN AN UNEQUAL WORLD (2018). Of course, not everyone accepts this periodization. See, e.g., STEVEN L. B. JENSEN, THE MAKING OF INTERNATIONAL HUMAN RIGHTS: THE 1960S, DECOLONIZATION, AND THE RECONSTRUCTION OF GLOBAL VALUES 4, 11 (2016); Meredith Terretta, Where Are the Lawyers, the Activists, the Claimants, and the Experts?, 39 HUM. RTS. Q. 226 (2017) (reviewing JENSEN, supra). 3. It bears noting that while the Group of 77 had been formed in 1964, the Group of 7 was a more recent invention, having been established in 1975–76. Key motivational factors included fear of political fragmentation in Western Europe, the popularity of many communist parties and organizations on the continent, and the desire (felt widely and acutely among Western policymakers) to “reenergize” capitalism by closing ranks and neutralizing the more radical demands of the global South. Many of these factors were also at work in the creation of the Rockefeller-sponsored Trilateral Commission in 1973. The rhet- oric of “dialogue”—ubiquitous at the time in policy reports, journalistic commentaries, and the work of international organizations—referred most specifically to the activities of the Conference for Interna- tional Economic Cooperation, formed in the mid-1970s to discuss issues of energy, finance, commodities, 139 BOOK PROOF - OZSU - NEOLIBERALISM AND HUMAN RIGHTS (DO NOT DELETE) 11/27/2018 10:58 AM No. 4 2018] NEOLIBERALISM AND HUMAN RIGHTS 141 transfer, and a host of related measures would foster economic growth and meet “basic needs” in the “South” while countering inflation and unemployment in the “North,” thereby facilitating a generalized expansion of international trade.4 Tellingly, even this market-oriented framework for development ultimately fell flat, with U.S. President Ronald Reagan and British Prime Minister Margaret Thatcher famously rejecting the feasibility of the Commission’s principal report, North-South: A Programme for Survival,5 at the “North-South Summit” con- vened in Cancún in October 1981.6 The Commission was not centrally concerned with matters of human rights, and it did not subscribe to a “rights-centric” model of socio-economic development. Nor can it justifiably be characterized as a fun- damentally neoliberal enterprise, given its overriding commitment to a form of global Keynesianism. Still, the Commission’s effort to articulate a broadly rights- friendly form of development that accommodated certain elements of neoliberalism, both in this first report and in a 1983 follow-up entitled Common Crisis,7 sheds light upon the complex relationship between neoliberalism and human rights during their shared moment of global ascendance and institutionalization. This article begins with a brief discussion of the recent literature on the historical and conceptual relations between the neoliberal and human rights movements. It then proceeds to consider the operational context and substantive rec- ommendations of the Brandt Commission, focusing upon the proposals that comprised its model of international political economy. Finally, it concludes by arguing that revisiting the Commission’s work illuminates the hazy mixture of neoliberal prescriptions and rights discourse that has characterized so much policy and academic thinking since the 1970s. II NEOLIBERAL HUMAN RIGHTS? In a sweep of the recent historiography on human rights, Stefan-Ludwig Hoff-

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